[Marital Rape] Wife cannot compel Parliament to prescribe punishment against her husband: Advocate Raj Kapoor

A wife cannot compel parliament to prescribe a particular punishment against her husband just to satisfy her ego, advocate Raj Kapoor told the Delhi High Court in the marital rape case hearing on Tuesday [RIT Foundation v Union of India]..Kapoor said that non-consensual sex between a husband and wife cannot be labelled as rape and, at worst, it can be called sexual abuse as defined under the Protection of Women from Domestic Violence Act.“Husband can be prosecuted under several other section of IPC like 323, 324, 498A, 506, 509 and DV Act, 2005 where cruelty includes physical and sexual abuse… Wife cannot compel the Parliament to prescribe a particular punishment against the husband to satisfy her ego. The only difference in Section 376 Indian Penal Code and Domestic Violence Act is the quantum of punishment,” he said..Kapoor was making his rejoinder submissions before a bench of Justices Rajiv Shakdher and C Hari Shankar in opposition to a batch of petitions calling for criminalisation of marital rape.These petitions have challenged Exception 2 of Section 375 of the Indian Penal Code (IPC) that exempts husbands from being charged with rape even if they establish sexual relations with their wives without consent.Kapoor is representing a NGO called Hridey, which has filed an intervention application in the matter. .He reiterated his earlier submissions that striking down Exception 2 has the potential to destroy the institution of marriage since a wedding is not only a union between two individuals, but also affects the children as well as the entire family.“It is not correct to argue that sexual act in married relations is individual act and the institution of marriage will not suffer if the Exception 2 is struck down. Supreme Court in its judgment of Sivasankaran v Santhimeenal has held that a marriage is more than a union between two individuals. Therefore, it is not correct to argue that sexual act in married relations is an individual act and the institution of marriage will not suffer if the Exception is struck down,” he said..He also disagreed with the submissions made by the petitioners that even a sex worker has the right to prosecute a man for rape despite the fact that she had taken money to perform a certain act. He said that the two instances are totally different and that the sexual relationship between a married couple cannot be equated with the relationship between a man and a sex worker.“The example of sex worker cited is also wrong. There is no emotional relationship there. It cannot be limited to just one event of consent for sexual relationship. These are totally different concepts.”.Kapoor relied on the Hindu Marriage Act 1955 to submit that there is an endeavour to protect the institution of marriage.“A number of provisions under the Hindu Marriage Act would show that an endeavour has been made to protect the institution of marriage. Under Section 13, though provision for divorce is available to either party, it provides that no petition can be filed unless one year has elapsed since the date of marriage. Even under Section 13B (divorce with mutual consent), a divorce petition cannot be entertained unless it is shown that they have been living separately for a period of one year or more.”.It was further submitted that when parliament has made a classification based on the gravity or intention of an offence, there is a limit on the powers of judicial review.“Policy making is entrusted with the legislature. It cannot be that one organ (legislature) gives protection to citizens and the other organ (judiciary) takes it away and makes it an offence. It is settled law that what cannot be done directly can also not be done indirectly.”He further said the powers of a High Court under Article 226 cannot be equated with the powers of Supreme Court, which in the cases of Joseph Shine, Navtej Johar and Independent Thought did not create an offence, but merely read down a section of the penal code or decriminalised an offence.“All these submissions are equally relevant to sustain 376B of IPC and 198, 198A and 198B of CrPC,” he concluded..The Court will continue hearing the arguments on Thursday, when advocate J Sai Deepak is likely to make his arguments for the Men Welfare Trust (MWT). .[Marital rape] Have been facing hate for my stand: Amicus Curiae Rebecca John